Delhi District Court
In Re: State vs Shri Bhagwan on 10 January, 2011
IN THE COURT OF GAURAV RAO: METROPOLITAN
MAGISTRATE: DELHI
In Re: STATE VERSUS SHRI BHAGWAN
F.I.R. No: 460/01
U/s 279/304 A IPC
P.S. Nangloi
Date of Institution of Case : 12.02.2002
Judgment Reserved for : 07.01.2011
Date of Judgment : 10.01.2011
JUDGMENT:
(a) The serial no. of the case : 2210/1/08 (b) The date of commission of offence : 07.06.2001 (c) The name of complainant : HC Madan Lal
(d) The name, parentage, of accused : Shri Bhagwan S/o Sh. Inder Singh, r/o Saini Vihar, Nangloi, Delhi.
Present Address : As above (e) The offence complained of : U/s 279/304 A IPC (f) The plea of accused : Pleaded not guilty (g) The final order : Convicted (h) The date of such order : 10.01.2011
Brief statement of the reasons for the decision:
FIR No. 460/01 1/23In brief the case of the prosecution is that on 07.06.2001 at about 8.35 am at Rohtak road near Police booth, Camp No. 3, Nangloi, Delhi within the jurisdiction of police station Nangloi, accused Shri Bhagwan was found driving a bus bearing no. DL- IPE-7280 in a rash and negligent manner thereby endangering human life and safety of others and while driving so he caused death of one Sanjay and thereby the accused committed offence u/s 279/304 A IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide order dated 18.07.2002, notice u/s 279/304A IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution so far examined eleven witnesses. Thereafter, the accused was examined u/s 313 Cr.P.C. He claimed himself innocence but did not offer to lead any evidence in his defence.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW 1 J.S. Pawar, Automobile Engineer deposed that on 07.06.2001 he mechanically inspected a bus bearing no. DL-1PA-7280 on the request of HC Madan Lal. He proved his FIR No. 460/01 2/23 detailed report in this regard as Ex.PW1/A. He deposed that the bus was fit for road test.
5. PW 2 Sh. Vashisht Shukla deposed that on 07.06.2001 he along with his cousin Sanjay were going from Peeragarhi to Nangloi in an under DTC bus whose number he does not remember and which was being driven by accused (correctly identified) and when the bus reached at Vimal hospital and while his cousin brother Sanjay trying to de-board the bus, the accused/driver suddenly accelerated the bus as a result of which his brother fell on the road and received injuries on his head. He deposed that police took the injured to Vimal hospital and thereafter to Sanjay Gandhi Hospital and he went to his house to inform about the incident. He deposed that when he returned back at the spot, police officials were investigating there and police also inquired from him.
6. PW 3 Sh. Madho Shukla deposed that on 12.06.2001 on receipt of information regarding the death of his cousin Sanjay Shukla he went to Trauma Centre and identified his dead body vide Ex. PW3/A and after postmortem, the dead body was handed over to them.
7. PW 4 Ram Kishan deposed that he used to work as a conductor under DTC bus. He deposed that on 07.06.2001 he was posted as conductor in bus bearing no. DL-1PA-7280 which used to ply on route from Anand Vihar Bus Terminal to Nangloi and on that FIR No. 460/01 3/23 day, the above said bus was being driven by accused Shri Bhagwan (correctly identified). He deposed that when the bus reached at Nala near Nangloi Depot, the bus driver suddenly applied the brakes as a result of which one passenger who was standing near the front gate fell on the road on which they all got down from the bus and saw that passenger received injury on his head. He deposed that they took the injured to Vimal hospital in the same bus and from where PCR Van took him to SGM hospital. He deposed that police recorded his statement. He deposed that had the accused not applied the brakes suddenly the accident could have been avoided. He deposed that police seized the bus vide Ex.PW4/A. He deposed that police also seized the photocopy of the documents of bus, I-Card, photocopy of batch and DL vide Ex. PW4/B, C & D. He deposed that police arrested accused Shri Bhagwan in his presence.
8. PW 5 Dr. Sameer Pandit, Sanjay Gandhi Hospital deposed that on 12.06.2001 he conducted the postmortem on the dead body of Sanjay which was sent by SI Attar Singh with alleged history of road accident and the same was identified by his uncle Madho Prakash. His detailed report in this regard is Ex.PW5/A. He deposed that the cause of death was comma as a result of head injury subsequent to road side accident. He deposed that all the injuries were antimortem and same duration.
9. PW 6 Ashok Shukla deposed that on 12.06.2001 on receipt of FIR No. 460/01 4/23 information regarding death of his younger brother Sanjay, he went to Trauma centre and identified his dead body. He deposed that IO recorded his statement Ex. PW6/A and after postmortem the dead body was handed over to them.
10 PW 7 Ram Mehar Sharma deposed that he is the owner of bus bearing no. DL-1PA-7280 and on 07.06.2001, IO issued notice U/s 133 M.V. Act to which he replied that at the time of accident his bus was being driven by accused (correctly identified). His reply in this regard is Ex.PW7/A and he got released the said bus on superdari vide Ex.PW7/B. 11 PW 8 HC Ram Chander deposed that on 07.06.2001 he was posted at PS Nangloi and on that day on receipt of DD No. 2 A, he alongwith HC Madan Lal reached at Vimal hospital where he came to know that the injured had been removed to some other hospital by PCR Van. He deposed that IO received DD No. 6 A and he alongwith HC reached at Sanjay Gandhi hospital where injured Sanjay was admitted and doctor opined that injured was not fit for statement. He deposed that no eye witness was present there. He deposed that he alongwith HC reached at the spot i.e. Rohtak road near Police booth, Camp No. 3. He deposed that IO made endorsement on the DD entry and same was handed over to him for registration of the case and after registration of FIR, he came back at the spot alongwith rukka and copy of FIR and handed over the same to the IO. He deposed FIR No. 460/01 5/23 that IO recorded the statement of eye witness/conductor Ram Kishan. Bus bearing no. DL-1PA-7280, photocopy of fitness certificate and permit (RC) were taken into possession vide Ex. PW4/A & Ex.PW4/B. He deposed that accused was arrested and his personal search was conducted vide Ex. PW8/A. He deposed that driving license, I-Card and batch number were also taken into possession vide Ex. PW4/C. His statement was recorded by the IO. He deposed that accused was released on bail and they came back to PS. 12 PW 9 Dr. V.K. Jha deposed that MLC No. 1629 Ex. PW9/A of Sanjay S/o Sh. Harish Chandra was prepared by Dr. Shantanu Sinha on 07.06.2001. He proved the MLC as Ex. PW9/A. 13 During his cross examination he stated that he had not prepared the MLC Ex. PW9/A. 14 PW 10 SI Attar Singh deposed that on 12.06.2001 he was posted at PS Nangloi and on that day, he was assigned the investigation of the above mentioned case. He deposed that he went to Shusrut Trauma Centre where dead body of deceased Sanjay Kumar Shukla was identified by Madho Shukla vide Ex. PW3/A and Ashok Kumar Shukla also identified his dead body as Ex. PW6/A. He deposed that after postmortem at SGM Hospital mortuary, the dead body was handed over to the relatives.
FIR No. 460/01 6/2315 PW 11 ASI Madan Lal deposed that on 07.06.2001 he was posted at PS Nangloi and on that day at about 8.30 am, on receipt of DD No. 2 A, he alongwith Ct. Ramchander reached at Vimal Hospital Nangloi where they came to know that injured had already been removed by the PCR van to some hospital. Thereafter, he received DD No. 6 A vide which he came to know that injured Sanjay had been admitted at SGM Hospital, Mangol Puri on which he alongwith Ct. Ramchander reached at hospital. He deposed that injured Sanjay was found admitted vide MLC No. 1629, E. No. 38136. The concerned doctor declared him unfit for statement. He deposed that he could not find any eye witness at the hospital on which he reached at the spot i.e Main Rohtak Road near police booth, Camp No. 3, Nangloi, Delhi but no eye witness was even found there. Thereafter, he prepared the rukka Ex.PW11/A on the basis of DD entry which was taken by Ct. Ramchander at PS. He got the case FIR registered and came back at the spot alongwith copy of FIR and original rukka. The conductor Ram Kishan also reached at the spot who told him that the accident occurred with the bus bearing no. DL-1PA-7280 which was being plied under DTC scheme and stated he is an employee of DTC. He deposed that the bus was driven by one Shri Bhagwan. He deposed that he recorded his complete statement U/s 161 Cr.P.C. regarding the whole incident. Meanwhile, eye witness Vashisth Shukla also reached at the spot and he got recorded his statement. Both identified accused Shri Bhagwan at the spot. He deposed that he seized the offending vehicle i.e. under DTC bus FIR No. 460/01 7/23 bearing no. DL-1PA-7280 from near Lokesh Cinema at some distance from the spot vide memo Ex. PW4/A. He seized the documents relating to the bus vide memo Ex. PW4/B. He prepared the site plan Ex.PW11/B and seized the photocopy of I-Card batch of accused vide memo Ex.PW4/C. D/L of accused was also seized vide memo Ex.PW4/D. The accused was arrested vide memo Ex.PW11/C and his personal search was carried out vide memo Ex. PW8/A. He got the mechanical inspection of the bus conducted and the report in this regard is Ex. PW1/A. He issued notice U/s 133 M.V. Act to owner Sh. Ram Mehar Sharma as Ex. PW7/A. The bus was released on superdari vide superdarinama Ex. PW7/B. He recorded the statement of witnesses. He correctly identified accused Shri Bhagwan.
16 During his cross examination he stated that he left the PS at about 8.30-8.40 am after receiving the information/DD. He stated that he reached at the hospital on his scooter bearing no. DL-4SE-8673 and it took around 3-4 minutes to reach the hospital. He stated that he met the doctor at the hospital who told him that the bus conductor came at the hospital along with the injured and left after calling the PCR. He denied the suggestion that he met the accused in the Vimal Hospital. He stated that he might have came there but same was not within his personal knowledge. He stated that after visiting Vimal hospital he came back to the PS as doctor told him that injured had been removed to some other hospital by the PCR. He stated that he found/met the injured at SGM hospital FIR No. 460/01 8/23 however, could not record his statement as he was declared unfit for statement by the doctor. He stated that after coming from Vimal hospital, he received DD No. 6A at about 9.00 am at the PS and thereafter, he moved to SGM hospital and it took around 15-20 minutes to reach at SGM hospital. He stated that he remained at SGM hospital for around 45 minutes and thereafter went to the spot within 15-20 minutes. He admitted that no eye witness was found initially however, after sending the rukka while he was present at the spot, eye witnesses came and he recorded their statements. He denied the suggestion that no eye witness was found at the spot. He voluntarily stated that the bus conductor and Vashisth Shukla met him at the spot. He denied the suggestion that all writing work was done by him at the PS. He stated that he called the mechanical inspector immediately as the mechanical inspector J.S. Pawar who used to reside nearby and he reached within 10-15 minutes after being called by him. He denied the suggestion that no eye witness met him ever at the spot and he recorded the statement of eye witnesses at the PS. He admitted that the site plan which was prepared was not as per scale. He denied the suggestion that he was deposing falsely or that the accused had been falsely implicated in this case.
17 I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and perused the FIR No. 460/01 9/23 documents placed on record by the prosecution in this case.
18. In order to prove its case and establish the guilt of the accused the prosecution has to prove that the accident was caused by accused Shri Bhagwan while driving DTC bus bearing registration no. DL-1PE-7280 in a rash and negligent manner which resulted in death of one Sanjay.
19. After going through the material on record and giving my thoughtful considerations to the arguments advanced at bar, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused.
20 It is stands proved/established from the deposition/testimony of eye witness Vashist Shukla who was examined as PW2 and Ram Kishan (PW 3) and whose deposition was duly corroborated by the other prosecution witnesses that it was the rash and negligent driving of accused Shri Bhagwan which resulted in the death of Sanjay.
21 PW 2 Vashist Shukla who is the eye witness of the accident proved that on 07.06.2001 while he along with his cousin brother Sanjay were going from Peeragrahi to Nangloi and were traveling in a DTC Bus driven by the accused and when the bus reached near Vi- mal hospital, the driver slowed down the bus to let the passengers get off/de-board the bus. However, when his brother was de-boarding the bus, the driver/accused suddenly accelerated the bus as a result FIR No. 460/01 10/23 his brother fell down and received head injuries. He was removed to hospital where he succumbed to his injuries. He proved that the po- lice recorded his statement.
22 Deposition of this witness was duly corroborated by PW 4 Ram Kishan who was the conductor in the offending bus. This witness proved that on 07.06.2001while he was on duty in the DTC bus bear- ing no. DL-1PA-7280 driven by accused Shri Bhagwan and the bus reached near Nangloi depot near nala, accused/driver suddenly ap- plied the brakes. One passenger namely Sanjay who was standing near the gate fell down and received injuries on his head. He further proved that the injured was removed to hospital in the same bus and that police recorded his statement and also seized the bus and the li- cense etc. of the accused as well as arrested him in his presence vide Ex.PW4/A to D. 23 Hence, PW 2 & 4 who are the eye witnesses proved the said accident dated 07.06.2001 and established the identity of the ac- cused as the driver of the offending bus.
24 Before proceedings further it will be pertinent to highlight that the deposition of both the eye witness remained un-impeached/un- challenged as they were not cross examined despite opportunities.
25 The deposition of eye witnesses was duly corroborated by the other prosecution witness.
FIR No. 460/01 11/2326 The owner of the offending bus namely Ram Mehar Sharma who was examined as PW 7 proved that the IO served a notice U/s 133 M.V. Act upon him which he replied vide Ex.PW7/A informing the IO that on the day of accident, his bus was driven by accused Shri Bhagwan.
27 Ct. Ram Chander (PW 8) proved that on receiving information regarding the accident vide DD No. 2 A, he along with IO reached at the spot where they came to know that the injured had been removed to hospital. They also received DD No. 6 A vide which they were in- formed that the injured was admitted in Sanjay Gandhi hospital. They went to the hospital and as the injured was declared not fit for state- ment, IO prepared the ruqqa which he took to PS and got the present case FIR registered. This witness further proved that the offending bus and the driving license of the accused was seized by the IO in his presence vide Ex.PW4/A to Ex. PW4/D respectively. He also proved the arrest of the accused vide Ex.PW8/A. 28 ASI Madan Lal (PW 11) corroborated the deposition of Ct. Ram Chander as well as the other prosecution witnesses and duly proved the arrest of the accused and the seizure of the offending bus as well as the documents of the accused. He also proved that he recorded the statement of the witness i.e bus conductor Ram Kishan and an- other eye witness Vashist Shukla. IO further proved the site plan of the accident as Ex.PW11/B. He also proved that he got the vehicle FIR No. 460/01 12/23 mechanically inspected as well as served notice U/s 133 M.V. Act on the owner of the bus.
29 The death of deceased Sanjay along with the cause of death was proved vide MLC No. 1629 as Ex. PW9/A and postmortem report Ex.PW5/A by Dr. V.K. Jha and Dr. Sameer Pandit. These reports make it amply clear that the injuries were received by the deceased in a road traffic accident and the cause of death was due to receipt of head injuries which were anti-mortem in nature.
30 The mechanical inspection report of the offending bus is on record and as per the report Ex.PW1/A given by PW1 J.S. Pawar, the bus did not suffer from any mechanical defect.
31 During the course of the arguments, Ld. Defence Counsel ve- hemently argued that the prosecution story suffers from various loop- holes/contradictions and the prosecution has miserably failed to bring home the guilt against the accused. It was argued that PW 2 Vashist Shukla was not an eye witness and was in fact a planted witness be- ing related to (cousin brother) the deceased. The said facts stands proved from the deposition of the IO and PW 8 Ct. Ram Chander who submitted that when he reached the spot, no eye witness was found there nor any eye witness was present at the hospital and also no bus ticket have been shown to have been recovered from the de- ceased to show his presence in the bus. Nonetheless, the said wit- ness did not speak a word regarding rash and negligent driving of the accused. It was further argued that from the deposition of PW 4 i.e FIR No. 460/01 13/23 the conductor of the bus, it is crystal clear that it was the deceased whose negligence resulted in his death as he was standing at the gate of the bus and hence, he fell because of his own fault. Lastly, it was argued that death occurred after 5 days of the accident and hence, it cannot be said that the cause of the death was the accident.
32. However, I do not agree that either the contention of the Ld. De- fence Counsel.
33 First of all, as I have already discussed above, the deposition of eye witness PW 2 Vashist Shukla and PW 4 Ram Kishan remained un-impeached. They were not cross examined by the accused or his counsel. It is not a case where the accused remained unrepresented. Record/order sheet dated 26.02.2002, 18.03.2002, 23.02.2007, 10.08.2007, 29.02.2008, 13.12.2010 etc. reveals that the accused was duly represented but for the reasons best known to the accused, testimony of both the eye witness was not challenged. Apart from the eye witness, the testimony of the superdar also remained unchal- lenged. These witnesses unambiguously proved that on the day of accident, it was accused Shri Bhagwan who was driving the offending bus. I have no reasons to disbelieve them. I find no reasons why they would falsely implicate an innocent person.
34 Just because eye witness Vashist Shukla was not found at the spot initially it does not mean that he was never present at the time of accident. This witness categorically stated in his deposition (which as discussed above remained unchallenged) that after the accident his FIR No. 460/01 14/23 brother was removed to hospital and he left for his house to inform about the accident. This conduct appears to be natural in the given facts and circumstances of the case. Reason being and as clear from site plan Ex.PW11/B, the accident occurred near/just in front of Vimal hospital and as deposed by other PWs i.e. eye witness Ram Kishan and Ct. Ram Chander etc. and injured was first removed to this hos- pital. Therefore, Vashist Shukla (PW 2) was assured that his brother was removed to hospital and accordingly, he went to inform his fami- ly. I find nothing wrong in it. Even otherwise, the Ld. Defence seems to have lost sight of the fact that apart from Vashist Shukla there is one another eye witness of the accident i.e bus conductor Ram Kis- han (PW 4).
35 The fact that Vashist Shukla is the cousin brother of the de- ceased, this relationship by itself is not sufficient to discredit the testi- mony of the witness as his presence at the spot was natural and stands proved. It is no longer res-integra that conviction can be based upon the sole testimony of an eye witness if his presence at the spot is natural and his testimony inspires confidence. Reliance can be placed upon the law laid down in "State of UP v. Ballabh Dass (SC) 1985 (2) R.C.R. (Criminal) 287, Badri v. State of UP., (SC) 1975 A.I.R (SC) 1985, Bur Singh v. State of Punjab, (SC) 2008 (4) R.C.R. (Criminal) 834, State of UP. V. Vinod Kumar (Dead) and Udai Bhan Singh, (SC) 1992 (3) R.C.R (Criminal) 689. In case ti- tled as State of UP v. Samman Dass (SC) 1972 A.I.R. (SC) 677, the Hon'ble Apex Court observed that relationship is not a ground to dis-
FIR No. 460/01 15/23credit the testimony of a prosecution witness. A witness who is present at the time and place is natural cannot be said to be interest- ed. There is no legal bar in basing conviction on the sole testimony of a related witness so long as the testimony of such witness is credible and does not suffer from any material contradictions (Duli Chand v. State (Delhi) (DB) 1998 Cri.LJ 988, Om Prakash v. State, (Delhi) (DB) 1991 (1) R.C.R. (Criminal) 98 and Balwan Singh v. State, (Delhi) (DB) 1990 (1) R.C.R. (Criminal) 593.
36 Mere fact that PW2 Vashist Shukla is related to deceased San- jay being his cousin brother that by itself is not sufficient to discard his otherwise consistent/trustworthy testimony. The law is well settled that relationship is not a factor to affect credibility of a witness. (Gali Venkataiah v. State of Andhra Pradesh, (SC) 2007(6) R.A.J. 279 and Hardeep Singh v. State of Haryana , (SC) 2008(4) R.C.R.(Criminal)
125). There is no proposition in law that relatives are to be treated as untruthful witnesses (Shyam v. State of M.P., (SC) 2007(2) R.C.R. (Criminal) 61). Interestedness is not a ground for rejecting his wit- ness. Such material witness is complainant and is himself injured. He would seldom falsely implicate others by ignoring real culprits. (Paresh Kalyandas Bhavsar v. Sadiq Yakubbhai Jamadar, (SC) 1993 A.I.R. (SC) 1544, State of Haryana v. Tek Singh, (S.C.) 1999(2) R.C.R.(Criminal) 685, State of U.P. v. Ballabh Das, (SC) 1985(2) R.C.R.(Criminal) 287). If there is no reason to disbelieve such a wit-
FIR No. 460/01 16/23ness his evidence cannot be rejected on mere fact that witness is an interested witness. (State of Maharashtra v. Tulshiram Bhanudas Kamble, (SC) 2007(4) R.A.J. 623, State of U.P. v. Vinod Kumar (Dead) and Udai Bhan Singh, (SC) 1992(3) R.C.R.(Criminal) 689, Harijana Narayana v. State of A.P., (SC) 2004(1) Cri.C.C. 370).
37 The arguments of the Ld. Defence counsel that no bus tickets have been placed on record by the IO, hence, it was not proved that Vashist Shukla or the deceased were traveling in the bus cannot be upheld for so many reasons. May be they were not carrying a valid DTC bus ticket/did not get a bus ticket issued from the conductor. It will be pertinent to observe that no personal search of the deceased was not carried out and no occasion arose for carrying on the person- al search of witness Vashist Shukla and hence, if even they were having the DTC bus tickets, it would not have been brought on record. Nonetheless, the law is well settled that an accused should not be allowed to go scott free or the complainant be disbelieved for defective investigation (Balwant Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 84 and Amar Singh Vs. Balwinder Singh 2003 AIR SCW 717). An accused should not be allowed to go scot free merely on account of faulty/negligent investigation. Every faulty in- vestigation or padding in evidence cannot by itself lead to total demo- lition of prosecution case if it can otherwise stand ignoring these falla- cies. (Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82). Mere faulty investigation cannot be made basis of acquitting the ac-
FIR No. 460/01 17/23cused when sufficient evidence is available to nail him (Ram Par- shad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal)
231). In Zahira Habibulla H. Sheikh v. State of Gujrat (SC), 2004 (4) S.C.C 158 and State of UP v. Jagdeo (SC) 2003 A.I.R. (SC) 660 , the Hon'ble Apex Court held that accused should not be acquitted solely on account of the defect in investigation. To do so would tanta- mount to playing into hands of investigating officer if investigation is designedly defective.
38. Regarding the contention that no public person/other passengers of the DTC bus were joined by the IO at the spot, in my opinion, there was no requirement of the same and absence of any public person has not affected the prosecution story in any manner. The Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) CRIMES 63 (SC). The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.
39. Reliance can be placed upon Chittar Lal v. State of Rajasthan, (SC) 2003 Cri.L.J. 3548 wherein it was held:
FIR No. 460/01 18/23It is the quality of evidence of the single witness whose testimo- ny has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quanti- ty of evidence which is necessary for proving or disproving a fact. 1996(1) RCR(Crl.) 308 (SC) relied on.
40. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872. This position has been settled by a series of decisions. The first decision which has become locus classi- cus is Mohamad Gugal Esa Mamasan Ger Alalah v. The King, AIR 1946 PC 3. The Privy Council focused on the difference between En- glish Law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and Section 134 of Evidence Act. The view has been echoed in Vadi- velu Thevar v. The State of Madras, AIR 1957 SC 614 , Guli Chand and others v. State of Rajasthan, AIR 1974 SC 276, Vahula Bhushan @ Vehuna Krishnan v. State of Tamil Nadu, AIR 1989 SC 236, Jagdish Prasad and others v. State of M.P., AIR 1994 SC 1251, and Kartik Malhar v. State of Bihar, 1996(1) RCR(Crl.) 308 (SC) : 1996(1) SCC 614, Namdeo v. State of Maharashtra, (SC) 2007(2) R.C.R.(Criminal) 893 and Shivaji Sahebrao Bobade v. State of Maharashtra, (1973)2 SCC 793.
FIR No. 460/01 19/2341 Regarding the contentions that PW 2 did not utter a word re- garding rash and negligent driving of accused Shir Bhagwan, it is to be seen that what is rash/negligence varies from case to case and there cannot be any fixed parameters for judging rashness/negli- gence. At the same time, there cannot be any assumption/presump- tion of the same. Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause in- jury. The criminality lies in such a case in running the risk of doing such an act with recklesness or indifference as to the consequences. Criminal negligence on the other hand is the gross and culpable or proper case and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the im- perative duty of the accused person to have adopted. (Niranjan Singh v. State (Delhi Administration), (Delhi) 1996(1) R.C.R.(Crim- inal) 320.
42. Meaning of expression negligent act and rashness came up for discussion in the case titled as Prabhakaran v. State of Kerala, (SC) 2007(3) R.C.R.(Criminal) 605 and the Hon'ble Apex Court Held :-
(1) A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a pru-FIR No. 460/01 20/23
dent or reasonable man would not do in the circumstances attending it - A rash act is a negligent act done precipitately.
(2) Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law.
(3) Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
43 In the case at hand the eye witness PW 2 (Vashist Shuk- la) categorically stated that when his brother was getting off the bus/de-boarding it, the accused driver suddenly accelerated the bus as a result Sanjay fell down and received head injuries. This act of the accused of suddenly accelerating the bus while the passenger was still de-boarding is nothing but criminal negligence writ large. Be- ing driver of a commercial vehicle i.e. bus it was the utmost duty of the driver to have assured that all the persons had de-boarded com- pletely before he put on his leg on the accelerator/started the bus. Not doing so and starting the bus/accelerating is per se negligence. In fact as is evident from the deposition of PWs, he did not bother to stop the bus and merely slowed it down thus putting the life of all those who were trying to de-board. Often, the Court comes across cases and also is a matter of fact in day to day life that the passen- gers of the bus have to unwillingly get off a moving bus as the driver FIR No. 460/01 21/23 is not inclined to stop it completely leaving them with no option but to risk their life by getting of a moving bus. This is what happened in the present case.
44 Regarding the contentions that as per the deposition of PW 4 (bus conductor Ram Kishan), the deceased was standing on the gate and hence, it was his negligence which resulted in the accident suffice would be to say that the said argument is absolutely merit less because as explained by PW 2 the deceased (Sanjay) along with the passengers were trying to de-board the bus and naturally if a person is to de-board/get off a bus, he has to go near the gate/approach the exit. Sanjay did the same but it was the sudden jerk/acceleration given by accused driver because of which he fell down and received injuries. Furthermore, PW 4 though an eye witness his testimony stands on a lesser footing then that of PW 2 Vashist Shukla as the exact reason for fall of Sanjay could not be known to him as meticulously as was known to PW 2 because being a conductor PW 4 was sitting on the last seat i.e at a distance from the front gate.
45 Regarding the last contention that the death of Sanjay occurred after 5 days of the accident, hence, it cannot be held that the accident was the cause of death of Sanjay cannot be entertained because as is evident from the MLC as well as the postmortem report, the cause of death was in fact head injury resulting from fall from the bus. It was the proximate/immediate cause of death. In order to constitute an FIR No. 460/01 22/23 offence under Section 304-A of the Indian Penal Code, the death must have been caused by the petitioner while doing any act in a rash or negligent manner, so there must be positive proof that the rash or negligent act of the petitioner was the approximate cause which resulted in the death of the deceased. There must be direct nexus between the death of a person and rash and negligent act of the accused. A.I.R 1968 SC 829, Suleman Rahim Mulani v. State of Maharashtra. Further reliance may be placed upon on 1972 AIR (SC) 1150, titled as Ambalal Bharti V. State of Gujrat (SC), Kishan Chand Vs. State of Haryana (SC) 1971 PLR 191, Sham Lal Vs. State (J & K) 1990 Crl. J. 1359 and Muuna Khan V. State of MP (Chattisgarh) 2004 Crl. J 525. In the present case, cause of death being the accident stands firmly established. As is evident from the MLC as well as the postmortem report i.e. Ex. PW9/A and Ex. PW5/A, the act of the accused was causa causans of the death of deceased Sanjay.
46 Thus, the prosecution has been able to prove the guilt against the accused beyond the shadow of doubt. Accordingly the accused is held guilty and convicted of charges in the present case.
47 A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
Announced in the open (Gaurav Rao) on 10.01.2011 MM (West)/Delhi. FIR No. 460/01 23/23 FIR No. 460/01 24/23 FIR No. 460/01 PS Nangloi 10.01.2011 Pr: Ld APP for the state.
Accused present on bail along with his counsel.
Final arguments heard.
Vide my separate judgment announced today in Open Court the accused has been held guilty under section 279/304 A IPC.
Matter be now listed for arguments on the point of sentence on 12.01.2011.
(Gaurav Rao) MM (West)/Delhi.
10.01.2011.
FIR No. 460/01 25/23 FIR No. 460/01 26/23IN THE COURT OF GAURAV RAO:
METROPOLITAN MAGISTRATE: WEST: DELHI In Re: STATE V/s SHRI BHAGWAN F.I.R. No.: 460/01 U/s 279/304A IPC P.S. Nangloi ORDER ON SENTENCE 12.01.2011 Present: Ld. APP for the State.
Convict Shri Bhagwan is present on bail.
Vide judgment announced on 10.01.2011 accused Shri Bhagwan has been convicted u/s 279/304A IPC.
The learned defence counsel submitted that convict has been facing trial for the last more than 10 years and the same itself has been enough punishment for him. It was submitted that the convict has a large family to look after and he is sole bread earner in the family. It was also prayed the accused be given benefit of section 360 Cr.p.c. i.e to release the accused on probation of good conduct.
Per contra, learned APP has very vehemently argued that the act of the accused is unpardonable. It was submitted that due to the rashness/negligence of the accused one person lost his life. It was submitted that the accused deserves no leniency least to release him on probation.
After giving my thoughtful to the submissions made at bar I am FIR No. 460/01 27/23 of the considered opinion that taking into account the long drawn trial as well as the age of the accused, the fact that he is extremely poor as is evident from his appearance and he is the sole bread earner of a large family it shall meet the ends of justice if the accused is sentenced to undergo six months SI along with fine of Rs. 1000 for offence u/s 279 IPC in default of payment of fine SI for 10 days. The accused is further sentenced to one year SI along fine of Rs. 5000/- for offence u/s 304 A IPC, in default of payment of fine to undergo further SI of 50 days. All sentences to run concurrently. He is further sentenced to pay compensation of Rs. 10,000/- to the family of the deceased.
Benefit of probation is not given to the accused as the accused being a professional driver should have been much more diligent while driving his vehicle. Because of his rash and negligent act one life was lost. Such act is unpardonable. I have relied upon the observations made in case titled as Ashok Kumar v. State of Punjab, (P&H) 2008(1) R.C.R.(Criminal) 481 wherein it was held persons on the wheels have great responsibilities while driving the heavy vehicles on the roads. Survivors and family members are affected not only by an immediate death or disability, but also life time psychological and physical sufferings. Deceased's life snuffed in a jiffy because of rashness on the part of the petitioner. Only his heirs know the pinch of the loss of his life. It will lead to miscarriage of justice and the conscience of the kiths and kins of the deceased would be shocked, if the petitioner is released on FIR No. 460/01 28/23 probation.
The courts have deprecated the practice of giving benefit of probation to those convicted u/s 279/304 A IPC as was observed in Dalbir Sing Vs. State of Haryana, 2000 [20 RCR (Crl)].
I order accordingly.
At this stage, an application u/s 389 Cr.P.C. has been moved by the accused for suspension of sentence. As the accused was on bail during trial he is admitted to bail on furnishing bail bond in the sum of Rs. 10,000/- with one surety of the like amount for 30 days. Bail bonds furnished considered and accepted.
Fine amount and compensation amount not paid.
A copy of this order be given to the convict free of cost. File be consigned to Record Room.
Announced in the open court (Gaurav Rao) on 12.01.2011 MM (West): Delhi FIR No. 460/01 29/23 FIR No. 460/01 30/23